The Energy Regulation and Markets Review - Stikeman Elliott

Netherlands
the time of writing a bill for the implementation of the European 3rd Energy Package
in the Acts is pending before the Senate. Implementing rules relating primarily to tariffs,
conditions and processes relating to the networks have been laid down in secondary
legislation based on the Acts, such as codes adopted by the Netherlands Competition
Authority (‘the NCA’).
The legal framework for exploration and production activities in the Netherlands
(including the Dutch part of the continental shelf) is laid down in the Mining Act and
secondary legislation – the Mining Decree and Mining Regulation – based thereon.
In addition a Heat Act is expected to enter into force in the foreseeable future that
will give consumers security of supply and will prescribe that the price for the supply of
heat to small-scale users will be set on the basis of the principle that they will not pay
more than consumers connected to the gas network.
II
REGULATION
i The regulators
In the Netherlands there is no separate energy regulator. The regulation of the electricity
and gas markets has been entrusted to the Minister of Economic Affairs, Agriculture
and Innovation (‘the Minister’) and the NCA. The NCA is divided into a number of
departments, including the Office of Energy and Transportation Regulation.
With respect to Dutch energy policy the Minister, by law, must publish an ‘energy
report’ at least every four years, giving guidance on decisions to be taken by the Dutch
government relating to a reliable, sustainable and efficient energy supply. The Minister is
responsible for most of the regulation in the energy sector, including the Acts.
The NCA is responsible for the enforcement of general competition law on the
basis of the Netherlands Competition Act. 2 In its capacity as energy regulator under
the Acts, the NCA adopts the tariff and technical codes governing the transmission and
distribution of electricity and gas. It also sets the regulated tariffs for each distribution
company. The NCA enjoys considerable powers to sanction infringements or violations
of the Acts, including the power to impose administrative fines, a binding order or an
order sanctioned by periodic penalty payments. The NCA is also engaged in handling
complaints about distribution companies and the monitoring of the obligations of
suppliers to so-called small-scale users (consumers and small businesses). From 1 January
2013 the NCA, the Independent Post and Telecommunications Authority and the
Consumer Authority will merge per into one authority: the Netherlands Authority for
Consumers and Markets.
ii Regulated activities
In the Netherlands, network services performed by distribution companies (network
operators) are regulated, whereas other activities have been liberalised.
Pursuant to the Acts, the owner of a transmission or distribution network must
appoint an independent network operator to operate its networks. This operator must
2 See the Netherlands chapter of The Public Competition Enforcement Review (Fourth edition).
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